Action on fake medicine does not go far enough

PUBLISHED : Wednesday, 05 January, 2011, 12:00am
UPDATED : Wednesday, 05 January, 2011, 12:00am

Counterfeit pharmaceuticals can hurt or kill. Fake watches, handbags and DVDs cannot. That is obvious, but it is a point that Hong Kong authorities seem to have missed in fighting forgeries. The penalties for making, importing or selling either are similar. For the sake of our health and reputation, we should correct that urgently.

There is good evidence in the Customs and Excise Department's recent agreement with the Consumer Council to name and shame shops that sell fake medicine. Retailers that are convicted of the crime will have their names published in the council's magazine, Choice. That is a worthy additional punishment for any seller of counterfeits, but it defies logic that someone who knowingly passes on dubious pharmaceuticals should even be allowed to continue in business. As a deterrent, it is a step; as a way of stamping out a serious problem, it is only scratching the surface.

Of course, sometimes a pharmacy or other retailer may not be aware that the drug being sold is not genuine. Often, the packaging and appearance can seem identical to the real product. Only after the purchaser takes or applies the contents is the difference apparent. Most times, there will be no effect. But there are countless documented cases in Hong Kong and elsewhere of sickness and even death from fakes. The problem is most serious in developing parts of the world, where people with low incomes are preyed on by counterfeiters; the World Health Organisation estimates that 700,000 die each year from drugs bought to fight malaria and tuberculosis alone. Invariably, the drugs are mislabelled to hide their identity and where they came from. They have the wrong or lack the right amounts or combinations of ingredients. Some of them work to an extent, making them more difficult to detect.

China is a proven source of many such drugs and Hong Kong is a transit point and like other parts of the world, destination. The customs department seized 55,080 items here in the first 11 months of last year valued at almost HK$5 million, but that is surely only the tip. Police charged 24 people or companies, and jail terms of between one and 24 months and fines varying from HK$1,000 to HK$200,000 were handed out. Authorities clearly are not taking the matter lightly, but such mild sentences do not befit the gravity of the crime.

Making fakes is a lucrative business, but there are no bigger gains to be made than from counterfeiting medicine. If pharmaceuticals dealing with erectile dysfunction or obesity are involved, the profits can be 100 times that possible for bags or watches and 10 times that of cocaine. For the producer, there are few, if any, risks. Shipments are often complicated to make detection difficult.

That makes determining liability problematic. There is nothing practical someone who buys fake medicine can do to get compensation. The customer could sue the shop, which in turn could take action against the manufacturer; even if this was possible, it would be a legal minefield that in all likelihood would not be worth the cost. The Law Reform Commission has recommended among proposed reforms that a class action or strict liability involving the importer would be the solution. Authorities have an obligation to protect consumers. That has to be especially so when it comes to fake medicines. Keeping them out of Hong Kong is also important for the business community, and our reputation for upholding laws and international obligations. Counterfeiters will not be deterred unless they get a tougher message.